Wells Fargo Bank, N.A. v Biedermann

Wells Fargo Bank, N.A. v Biedermann 2019 NY Slip Op 08932 Decided on December 12, 2019 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 12, 2019
Renwick, J.P., Gische, Mazzarelli, Moulton, JJ.
10549 850065/13

[*1] Wells Fargo Bank, N.A., Plaintiff-Respondent,

v

Judith Grace Biedermann also known as Judith Biedermann, et al., Defendants-Appellants, The Board of Managers of L'Ecole, et al., Defendants.

Joseph A. Altman, P.C., Bronx (Joseph A. Altman of counsel), for appellants.

Reed Smith LLP, New York (Kerren B. Zinner of counsel), for respondent.

Order, Supreme Court, New York County (Judith N. McMahon, J.), entered March 28, 2018, which denied defendants Judith Biedermann and Denise Biderman's motion to reject the report of the Special Referee, dated May 11, 2017, and granted plaintiff's cross motion to confirm the report, unanimously reversed, on the law, without costs, defendants' motion granted, plaintiff's motion denied, and the complaint dismissed without prejudice.

The court erred in confirming the Referee's report, which found that the notices required by RPAPL 1304 were correctly mailed. RPAPL 1304 requires that notice be sent by the lender, assignee or mortgage loan servicer to the borrower at the address of the mortgaged property and any other address of record at least 90 days before commencement of a mortgage foreclosure action. Here, although the mortgaged property was a particular unit in a 275-unit condominium building, the notice mailing did not include that unit number. It was addressed only to the building. Under these circumstances, the mailing did not comply with the requirements of RPAPL 1304. The complaint against defendants should be dismissed without prejudice (Nationstar Mtge., LLC v Cogen, 159 AD3d 428, 429 [1st Dept 2018]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 12, 2019

DEPUTY CLERK